Ex Parte Wei et al

Patent Trial and Appeal Board

Oct 26, 2016

12968095 (P.T.A.B. Oct. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/968,095 12/14/2010
72689 7590 10/28/2016
SHUMAKER & SIEFFERT, P.A
1625 RADIO DRIVE, SUITE 100
WOODBURY, MN 55125
FIRST NAMED INVENTOR
Yin Wei
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
1217-038US01 1755
EXAMINER
GUIRGUIS, MICHAEL M
ART UNIT PAPER NUMBER
2498
NOTIFICATION DATE DELIVERY MODE
10/28/2016 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
pairdocketing@ssiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte YIN WEI, SUBRAMANIAN IYER,
RICHARD CAMP AGNA, and JAMES WOOD 1
Appeal2014-008242
Application 12/968,095
Technology Center 2400
Before MICHAEL J. STRAUSS, DANIEL N. FISHMAN, and
JAMES W. DEJMEK, Administrative Patent Judges.
FISHMAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-22.2 We have jurisdiction over the pending claims under 35 U.S.C.
§ 6(b ).
We AFFIRM-IN-PART.
1 Appellants identify Juniper Networks, Inc. as the real party in interest.
App. Br. 3.
2 In this Decision, we refer to Appellants' Appeal Brief ("App. Br.," filed
February 26, 2014); Appellants' Reply Brief ("Reply Br.," filed July 15,
2014); the Final Office Action ("Final Act.," mailed April 25, 2013); the
Examiner's Answer ("Ans.," mailed on May 15, 2014); and the original
Specification ("Spec.," filed December 14, 2010).
Appeal2014-008242
Application 12/968,095
THE INVENTION
Appellants' invention is directed to "an integrated, multi-service
network client for cellular mobile devices." Abstract.
Independent claim 1, reproduced below, is representative:
1. A cellular mobile device comprising:
a transmitter and receiver to send and receive cellular
communications in the form of radio frequency signals;
a microprocessor;
an operating system executing on the microprocessor to
provide an operating environment of application software;
a multi-service virtual private network (VPN) client
registered with the operating system as a single application,
wherein the multi-service VPN client comprises:
a security manager integrated within the multi-
service VPN client to apply at least one security service to
network packets;
a VPN handler having an interface to exchange the
network packets with the security manager for application of the
security service, wherein the VPN handler is configurable to
operate in one of an enterprise mode and a non-enterprise mode,
wherein in the enterprise mode the VPN handler establishes a
VPN connection with a remote VPN security device and
provides encryption services to securely tunnel the network
packets between the cellular mobile device and the remote VPN
security device, and wherein in the non-enterprise mode the VPN
handler directs the network packets to the security manager
without application of the encryption services and communicates
the network packets to a packet-based network without tunneling
the packets; and
a VPN control application that provides a unified
user interface that allows a user to configure both the VPN
handler and the security manager of the multi-service VPN
client.
2
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Application 12/968,095
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Linderman US 2003/0131245 Al July 10, 2003
Weaver et al. ("Weaver") US 2004/0148346 Al July 29, 2004
Gaur et al. ("Gaur") US 2005/0198498 Al Sept. 8, 2005
Makela US 2005/0229111 Al Oct. 13, 2005
Sundarrajan et al. US 2006/0195840 Al Aug. 31, 2006
("Sundarraj an")
Cole US 2008/0081605 Al Apr. 3, 2008
Yamamoto US 2010/0017406 Al Jan. 21, 2010
(PCT filed Sept. 27,
2007)
THE REJECTIONS
Claims 1--4, 10-12, 15, and 18-22 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Linderman and Weaver. Final Act. 4--8.
Claims 5-9 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Linderman, Weaver, and Sundarrajan. Final Act. 8-10.
Claim 13 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Linderman, Weaver, Sundarrajan, and Makela.
Final Act. 10-11.
Claim 14 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Linderman, Weaver, Sundarrajan, Makela, and
Yamamoto. Final Act. 11-12.
Claim 16 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Linderman, Weaver, and Gaur. Final Act. 12-13.
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Application 12/968,095
Claim 17 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Linderman, Weaver, and Cole. Final Act. 13-14.
ANALYSIS
Only those arguments made by Appellants in the Briefs have been
considered in this Decision. Arguments that Appellants did not make in the
Briefs are waived. 37 C.F.R. § 41.37(c)(l)(iv).
We are not persuaded by Appellants' contentions of Examiner error
(App. Br. 6-25; Reply Br. 3-9). Except for the Examiner's findings and
reasoning regarding claims 13 and 14 as discussed infra, we adopt as our
own the findings and reasons set forth by the Examiner in the action from
which this appeal is taken (Final Act. 2-14) and as set forth by the Examiner
in the Answer (Ans. 2-18). However, we highlight and address specific
arguments and findings for emphasis as follows.
Claims 1--4, 6-12, 15, and 18-22
"Single Application"
Appellants contend the Examiner erred in finding the combination of
Linderman and Weaver teaches or suggests "a multi-service virtual private
network (VPN) client registered with the operating system as a single
application," as recited in claim 1. Appellants argue registering a multi-
service VPN client as a single application means installing and executing the
multi-service VPN client as a single application. App. Br. 9. Appellants
argue none of the references describe a multi-service VPN client that, as a
single application, has the features and capabilities set forth in Appellants'
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claims (such as the features of a security manager and a VPN handler, as
claimed). Id.
Appellants' contention is unpersuasive of Examiner error. We find no
specific definition in Appellants' Specification that distinguishes registering
a multi-service VPN client as a single application from integrating
Linderman's security features into a security layer (230) as a single module.
Ans. 13 (citing Linderman i-f 109; Figure 2). Given the lack of a relevant
limiting definition in Appellants' Specification, the Examiner broadly but
reasonably construes the disputed limitation, consistent with the
Specification, to encompass Linderman's integration of security features into
the security layer (230). Id.; see also In re Amer. A cad. of Sci. Tech. Ctr.,
367 F.3d 1359, 1364 (Fed. Cir. 2004).
Additionally, the Examiner finds "implementing software in a single
application container is a matter of obvious engineering choice." Ans. 13
(citing In re Larson, 340 F.2d 965, 969 (CCPA 1965)). We agree. The fact
that the claimed multi-service VPN client has both a security manager and
VPN handler integrated as a single application is not sufficient by itself to
patentably distinguish over the prior art unless there are new or unexpected
results. See Larson, 340 F.2d 965; see also In re Dulberg, 289 F.2d 522,
523 (CCP A 1961 ). Appellants do not identify a new or unexpected result
from such integration.
Therefore, we agree with the Examiner's findings that the
combination of Linderman and Weaver teaches or suggests "a multi-service
[VPN] client registered with the operating system as a single application," as
recited in claim 1.
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Appellants next argue the Examiner did not address a security
manager that provides at least one security service separate from a VPN
handler that provides encryption services as claimed, but instead refers to
Linderman's VPN security services as both the VPN handler and security
manager. App. Br. 9-10. Therefore, Appellants argue Linderman's VPN
security services alone do not teach the functions set forth in the VPN client
as claimed, including the VPN client having "both a security manager that
provides security services and a VPN handler that provides encryption I
description services for communicating with a remote VPN security device."
Id. (citing Linderman i-f 109). In support of Appellants' contentions,
Appellants direct us to the original disclosure and note that the identified
portions of the Specification are "without limitation of the claims." App.
Br. 10-11 (citing Spec. i-fi-136 and 46; Figure 4A).
We are unpersuaded the Examiner erred. "Though understanding the
claim language may be aided by the explanations contained in the written
description, it is important not to import into a claim limitations that are not
a part of the claim." SuperGuide Corp. v. DirecTV Enters., Inc.,
358 F.3d 870, 875 (Fed. Cir. 2004). Appellants' argument makes clear that
the cited portions of the Specification are not intended to limit the claims.
We agree and, therefore, decline to import Appellants' examples from the
Specification to limit the interpretation of a "single application."
Furthermore, we find Appellants' argument is not responsive to the
Examiner's rejection. The Examiner finds Linderman teaches a security
layer (230) that intercepts, directs, and authenticates incoming
communications (Ans. 14 (citing Linderman i-f 77)) and teaches VPN
functionality that encrypts and tunnels outbound packets (id. (citing
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Application 12/968,095
Linderman i-f 109)). As the Examiner explains, "[w]hether Linderman
choses to name each subroutine in the VPN services or not, does not change
the fact that claim 1 's VPN handler and security manager are taught in
Linderman's security layer that includes the VPN services." Id. We agree.
Thus, Linderman teaches a security layer (230) (the claimed "multi-service
VPN client registered with the operating system as a single application"),
wherein the security layer (230) comprises functionality that intercepts,
directs, and authenticates incoming communications (the claimed "security
manager") and functionality that encrypts and tunnels outbound packets (the
claimed "VPN handler"), as claimed.
"Enterprise Mode" vs. "Non-Enterprise Mode"
Appellants argue,
Contrary to the assertion of the final Office Action, any
modification of the security layer software of Linderman in view
of the teachings of Weaver would not have led one of ordinary
skill in the art to Applicant's claimed invention. That is, any
modification of the security layer software of Linderman in view
of the teachings of Weaver would not have resulted in a VPN
handler configurable to operate in both an enterprise mode in
which the VPN handler establishes a VPN connection with a
remote VPN security device and provides encryption services to
securely tunnel the network packets between the cellular mobile
device and the remote VPN security device, and a non-enterprise
mode in which the VPN handler directs the network packets to
the security manager without application of the encryption
services and communicates the network packets to a packet-
based network without tunneling the packets. Moreover, any
modification to the VPN functions of Linderman that would
cause those VPN function to not apply encryption services and
to not tunnel packets would, in fact, defeat the entire purpose of
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the VPN functions. As such, any such modification would not
have been obvious.
App. Br. 12. In particular, Appellants argue, although Weaver suggests an
instant messaging program that may send unencrypted messages, the
combination with Linderman does not make sense. Id. at 13. Appellants
contend, in the proposed combination, Linderman's client applications
would not make use of Weaver's encryption because Linderman already
provides application-layer encryption. Id.; see also Reply Br. 4--5 (citing
Linderman i-fi-1 87, 92, 109).
We remain unpersuaded of Examiner error. Initially, we note it is
well settled that mere attorney arguments and conclusory statements, which
are unsupported by factual evidence, are entitled to little probative value. In
re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe,
736 F.2d 699, 705 (Fed. Cir. 1984). Attorney argument is not evidence. In
re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Nor can such argument
take the place of evidence lacking in the record. Meitzner v. Mindick, 549
F.2d 775, 782 (CCPA 1977). Appellants provide only unsupported
assertions but fail to identify persuasive evidence that Linderman's client
applications would not make use of Linderman's VPN security layer in the
proposed combination with Weaver's unencrypted messages.
Furthermore, for similar reasons, we are not persuaded by Appellants'
arguments that the proposed combination of Linderman and Weaver would
defeat Linderman's entire purpose. The Examiner finds Linderman
discloses the recited VPN operations to encrypt tunneled communication
data selectively and Weaver discloses enabling or disabling of encryption
based on a present mode of communication (enterprise mode or casual
mode). Ans. 14--15 (citing Linderman i-fi-163, 109 and Weaver i-fi-189, 91).
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Thus, the Examiner finds the combination teaches or suggests the recited
VPN handler. We remind Appellants that the conclusion of obviousness
does not demand bodily incorporation of one reference into another, but,
instead, the test is what would be suggested to the ordinary skilled artisan by
the combined teachings. In re Keller, 642 F.2d 413, 425 (CCPA 1981).
Lastly, Appellants argue, to the extent Weaver teaches an IM program
that may send encrypted messages, there is no suggestion that would lead
one of ordinary skill in the art to modify "Linderman to implement a VPN
handler that supports a non-enterprise mode in which packets flow through a
VPN handler but that the VPN does not tunnel the packets to a remote VPN
security device, as recited in claim 1." App. Br. 13 (emphasis omitted).
Appellants argue, "the Examiner has not articulated a rational reason as to
why one of ordinary skill in the art would have looked to modify the VPN
security layer software of Linderman in view of an instant messaging
program described by Weaver." Id. at 14; see also Reply Br. 6.
In particular, Appellants argue "only by impermissibly using Applicant's
claim 1 as a template to piece together the teachings of Linderman and
Weaver does the final Office Action arrive at the combination of Linderman
and Weaver allegedly teaching all the elements of independent claim 1."
Ans. 14.
We remain unpersuaded of Examiner error. The Examiner reasons
the ordinary skilled artisan would have been motivated to combine
Linderman and Weaver "to allow the user appropriate settings when
communicating with different groups." Final Act. 6 (citing Weaver i-f 35);
see also Ans. 16. Thus, the Examiner has articulated a reason for the
proposed combination based on rational underpinnings. See KSR Int 'l Co. v.
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Teleflex Inc., 550 U.S. 398, 418 (2007). The Court in KSR further held, "the
analysis need not seek out precise teachings directed to the specific subject
matter of the challenged claim, for a court can take account of the inferences
and creative steps that a person of ordinary skill in the art would employ."
Id. Appellants have not persuasively shown the Examiner's reasoning to be
m error.
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner's rejection of independent
claim 1. Independent claims 18, 21, and 22 contain similar limitations and
are argued together with claim 1. See App. Br. 15-18. Thus, for the same
reasons as claim 1, we sustain the rejection of claims 18, 21, and 22.
Additionally, we sustain the Examiner's rejections of dependent claims 2--4,
6-12, 15, 19, and 20, which are not argued separately with particularity. See
id. at 14, 16, and 19.
Claim 5
Claim 5 depends from claim 1 and further recites wherein the VPN
handler comprises a host checker module that "inventories a state of the
cellular mobile device and builds a health status report, and wherein the host
checker outputs the health status report to the remote VPN security device
prior to establishing the VPN connection for determining whether the
cellular mobile device is compliant with corporate policies."
Appellants argue "the health monitoring programs 216 of Sundarrajan
suggest user-space programs separate from any VPN client" and, therefore,
it would not have been obvious to one of ordinary skill in the art at the time
of Appellants' invention. App. Br. 19.
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We are not persuaded by Appellants' arguments. As discussed supra,
an obviousness analysis need not seek out precise teachings but can take
account of the inferences and creative steps employed by a person of
ordinary skill in the art. KSR, 550 U.S. at 418. The Examiner explains the
combination would have been obvious "to find any errors within the
device." Final Act. 9. We agree and adopt these findings and Appellants do
not persuasively rebut these findings. Thus, we are unpersuaded of
Examiner error and we sustain the Examiner's rejection of claim 5.
Claims 13 and 14
Claim 13 depends from claim 1 and further recites, in relevant part,
wherein a VPN control application "renders a bookmark window using input
controls native to the cellular mobile device." The Examiner relies on
Makela in the proposed combination for this additional feature. Final
Act. 10-11. The Examiner explains,
Makela teaches rendering and parsing the HTML links using
device interface components as a keyboard, a touch screen and
voice commands[,] which are part of the handset and not
prescribed [sic] by the HTML protocol. The claim does not limit
the bookmark window or the input interface into a specific
implementation.
Ans. 17 (citing Makela i-f 96).
Appellants argue, "'a keyboard, touch screen and voice commands' is
not a VPN control application at all, let alone a VPN control application that
... renders a bookmark window using input controls native to the cellular
mobile device." Reply Br. 8.
We are persuaded by Appellants' argument. The recited input
controls are elements rendered on the display such as buttons or check
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boxes, by the VPN control application. See Spec. i-fi-174, 94. The
Examiner's interpretation of "input controls" as reading on hardware
elements such as keyboards, the touch-screen, and voice commands is
unreasonably broad in view of the Specification.
Thus, we are persuaded the Examiner erred in rejecting claim 13 and,
for the same reasons, claim 14 dependent therefrom. Therefore, we do not
sustain the rejection of claim 13 and 14. 3
Claim 16
Claim 16 depends from claim 1 further reciting wherein the VPN
handler "establishes the VPN connection as an Internet Protocol Security
(IPSec) connection over User Datagram Protocol (UDP), and wherein the
VPN handler includes a compression module that applies Lempel-Ziv (LZ)
compression in conjunction with the IPSec connection to tunnel encrypted
IP packets to the remote VPN security device." Appellants argue the mere
mention of a related compression algorithm does not disclose or suggest the
claimed feature of a VPN handler. App. Br. 23.
We are unpersuaded of Examiner error. At the outset, we note 37
C.F.R. § 41.37(c)(l)(iv) requires more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art. See In re Lovin,
652 F.3d 1349, 1357 (Fed. Cir. 2011). Additionally, the Examiner finds
paragraph 39 of Guar teaches compressing IP datagrams (UDP protocols)
3 Appellants raise other issues regarding claim 14. See App. Br. 21-22; see
also Reply Br. 8-9. We do not reach these other issues but, instead, reverse
the rejection of claim 14 solely based on its dependency relationship with
claim 13.
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using LZ compression, followed by IP sec encryption. Ans. 17-18 (citing
Guar i-fi-139, 40). Appellants fail to address these findings or otherwise
provide sufficient evidence or reasoning that rebut the Examiner's findings
regarding Guar. Therefore, we agree with the Examiner's findings that Guar
teaches or suggests the disputed limitation of claim 16. Accordingly, we
sustain the Examiner's rejection of claim 16.
Claim 17
Claim 17 depends from claim 1 and recites, in relevant part, that
"when only a cellular network is available and not a wireless packet-based
connection, the VPN handler defers the fast reconnect until application-layer
data is received from a user application and ready to be sent via the VPN
connection." The Examiner finds Cole teaches not performing automatic
fast reconnect while in a 3G network. Final Act. 13-14 (citing Cole i167).
Appellants assert paragraph 67 of Cole teaches fast connect, but argue
Cole's teachings are contrary to deferring the fast connect until application-
layer data is received from a user application and ready to be sent via a VPN
connection when only a cellular network is available and not a wireless
packet-based connection. App. Br. 24 (citing Cole i1 67).
In response to Appellants' arguments, the Examiner explains Cole
teaches if a device is only connected to a 3G network, then fast reconnects
are disabled until suitable settings are present. Ans. 18 (citing Cole i1 67).
The Examiner further finds paragraph 68 of Cole teaches that the suitable
settings include a new application's connectivity requirements. Id. (citing
Cole i1 68). Appellants do not provide sufficient, persuasive evidence or
argument to rebut these additional findings in the Examiner's Answer.
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Absent persuasive rebuttal in reply to the Examiner's additional findings, we
agree with and adopt the Examiner's unrebutted finding that Cole discloses
the disputed limitations as recited in claim 17. Therefore, the Examiner's
rejection of claim 1 7 is sustained.
DECISION
We affirm the Examiner's decision to reject claims 1-12 and 15-22.
We reverse the Examiner's decision to reject claims 13 and 14.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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